[Federal Register Volume 72, Number 151 (Tuesday, August 7, 2007)]
[Notices]
[Pages 44214-44216]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-3855]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2006-25755]


Operating Limitations at New York LaGuardia Airport; Proposed 
Amendments

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Proposed amendments and request for comments.

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SUMMARY: The Federal Aviation Administration (FAA) has tentatively 
determined that it will be necessary to amend the December 12, 2006, 
order that places temporary limitations on flight operations at New 
York's LaGuardia Airport (LaGuardia).

FOR FURTHER INFORMATION CONTACT: Komal Jain, Regulations Division, 
Office of the Chief Counsel; Telephone: (202) 267-3073; E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Proposed Amendments to Order

    The Federal Aviation Administration (FAA) proposes to modify its 
December 12, 2006, order (the Order) that temporarily limits flight 
operations at New York's LaGuardia Airport (LaGuardia), pending its 
promulgation of a long-term regulation to manage congestion at the 
airport. We propose to (1) provide an approval process for Operating 
Authorization (OA) transfers for day-of carrier substitutions; (2) 
amend provisions affecting the 80 percent minimum-use requirement by 
adding a waiver for holiday periods and providing the Administrator 
greater discretion to suspend the requirement under certain conditions; 
and (3) provide a mechanism for withdrawal of OAs for FAA operational 
reasons. These proposed amendments would not affect unscheduled 
operations.
    The FAA invites air carriers and other interested persons to submit 
written comments on this proposal by no later than September 6, 2007 in 
Docket FAA-2006-25755. We will give full consideration to comments 
received before we issue a final modification to the Order. You may 
send comments using any of the following methods:
    DOT Docket Web Site: Go to http://dms.dot.gov and follow the 
instructions for sending your comments electronically.
    Mail: U.S. Department of Transportation, Docket Operations, M-30, 
Room W12-140, 1200 New Jersey Ave., SE., Washington, DC 20590.
    Fax: (202) 493-2251.
    Hand Delivery: West Building, Ground Floor, Room W12-140, U.S. 
Department of Transportation, 1200 New Jersey Ave., SE., Washington, DC 
20590 between 9 a.m. and 5 p.m., Monday through Friday, except for 
Federal holidays.

I. Background

    Due to LaGuardia's limited runway capacity, the airport cannot 
accommodate the number of flights that airlines would like to operate 
without causing significant congestion. The FAA has long limited the 
number of arrivals and departures at LaGuardia during peak demand 
periods through the promulgation and implementation of the High Density 
Rule (HDR).\1\ By statute enacted in April 2000, the HDR's 
applicability to LaGuardia operations terminated as of January 1, 
2007.\2\ On August 29, 2006, the FAA published a notice of proposed 
rulemaking (NPRM) in anticipation of the HDR's expiration (71 FR 
51360). In the NPRM, the agency proposed another congestion management 
program for LaGuardia, which, among other things, proposed to continue 
to limit the number of scheduled and unscheduled operations at 
LaGuardia. Because the rulemaking was not completed before January 1, 
2007, the FAA, after notice and comment, adopted interim operational 
limitations on LaGuardia flights through the Order (71 FR 77854; Dec. 
27, 2006). Without the limits contained in the Order, the FAA projected 
that severe congestion-related delays would occur as a result of 
excessive demand at LaGuardia, leading to delays both at LaGuardia and 
at other airports throughout the National Airspace System (NAS).
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    \1\ See 49 CFR part 93, subpart K.
    \2\ Aviation Investment and Reform Act for the 21st Century 
(AIR-21), Pub. L. 106-181 (April 5, 2000), 49 U.S.C. 41715(a)(2).
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    When the FAA issued the Order, we (1) maintained hourly limits at 
75 scheduled and six unscheduled operations at LaGuardia from 6 a.m. 
through 9:59 p.m., Eastern time, Monday through Friday, and from noon 
through 9:59 p.m., Eastern time on Sundays; (2) imposed an 80 percent 
minimum usage requirement for OAs; (3) provided for a lottery to 
reallocate withdrawn, surrendered or unallocated OAs; and (4) allowed 
for trades and leases of OAs for consideration for the duration of the 
Order.

II. Proposed Amendments

    The Order, which took effect on January 1, 2007, is a temporary 
measure while the FAA completes its final rule (Rule) to manage 
congestion at LaGuardia. The agency is in the process of reviewing 
comments received on the NPRM, but the review is not complete. Until 
the Rule becomes effective, we propose several amendments to the Order 
to improve the administration of the congestion management program at 
LaGuardia.
    The FAA's authority to limit the number of flight operations at 
LaGuardia is an essential component of the FAA's statutory 
responsibilities. The FAA holds broad authority under 49 U.S.C. 
40103(b) to regulate the use of the navigable airspace of the United 
States. This provision authorizes the FAA to develop plans and policy 
for the use of navigable airspace and, by order or rule, to regulate 
the use of the airspace as necessary to ensure its efficient use.

Secondary Market: Approval Process

    Some air carriers with affiliated or regional carrier flights 
expressed concerns about the burden associated with obtaining prior 
approval from the FAA for OA transfers when making day-of carrier 
substitutions. Due to the around-the-clock nature of an airline's 
operations, and the real-time nature of operational logistics, it is 
not unusual for an air carrier to make day-of flight service 
substitutions from one carrier to another. The FAA recognizes that 
advance approval of an OA transfer is not always possible, in part 
because the FAA Slot Administration Office is not open 24 hours a day. 
Therefore, we propose to amend the Order to permit a transfer request 
to be submitted for FAA approval up to 72-hours after the actual 
operation. In order to support the request for the post-transfer 
approval, the FAA would require flight information, including flight 
number, origin, destination and scheduled time of operation.
    The FAA is not prepared to eliminate entirely the requirement that 
we receive advance notice of OA transfers. The initial scheduling 
decisions are normally made with sufficient time to obtain the 
requisite approval, even in the case of common ownership and affiliated 
carriers. The FAA proposes to limit post-transaction approvals to 
unplanned, day-of operational schedule changes between commonly owned 
or affiliated carriers under the same marketing control, and we are 
seeking

[[Page 44215]]

comment on whether the transfer provisions should be revised to 
recognize these operational issues and whether the procedure outlined 
meets carrier needs.

Minimum Usage Requirements and Waivers

Holiday Waiver
    On January 9, 2007, the Air Transport Association (ATA) submitted a 
petition for an amendment to the Order related to the minimum usage 
requirement.\3\ ATA noted that the Order contains no provision to 
address the ``predictable drop-off in operations on and immediately 
after certain holidays.'' By contrast, ATA noted that the HDR and the 
governing rules for O'Hare state ``the FAA will treat as used any slot 
held by a carrier at a High Density Traffic Airport on Thanksgiving 
Day, the Friday following Thanksgiving Day, and the period from 
December 24 through the first Saturday in January.''
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    \3\ See Docket FAA-2006-25755.
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    ATA is correct in its conclusion that the FAA inadvertently omitted 
a holiday waiver provision under the Order. The FAA proposes to correct 
that omission and include a holiday waiver under this proposed 
amendment.
Start-up Waiver
    The FAA recognizes that carriers obtaining an OA in a lottery would 
require time prior to its use to market the flights and arrange for 
aircraft, crew, gate, and terminal availability. Most carriers have 
indicated in past proceedings for LaGuardia that 120 days provides 
sufficient planning time. Therefore, the FAA proposes to adopt a waiver 
of the minimum usage requirements for 120 days after an OA is allocated 
in a lottery. A similar start-up waiver is not warranted when an OA is 
leased or transferred because carriers should consider the usage 
requirements in their discussions.
Administrator's Waiver Authority
    Under the Order, the FAA Administrator can ``waive the 80 percent 
usage requirement in the event of a highly unusual and unpredictable 
condition which is beyond the control of the carrier and which exists 
for a period of 5 consecutive days or more.'' We propose the 
Administrator be given greater discretion to issue a waiver if the 
impact of a particular event is five consecutive days versus the 
duration of the event existing for more than five days. This recognizes 
that carrier operations may require several days to return to normal 
after significant disruptions to service; for example, aircraft and 
crew may need to be repositioned. We believe this proposed amendment 
allows carriers and the FAA, in its administration of the congestion 
management program at LaGuardia, greater latitude and flexibility to 
deal with unpredictable conditions; while still maintaining the 
integrity and purpose of the usage requirement.

Reversion and Withdrawal of Operating Authorizations

    As the FAA has indicated in various proceedings related to 
capacity-constrained airports, operating authority is subject to 
absolute FAA control. The FAA may reduce flight operations at an 
airport in order to meet operational needs or to recognize reductions 
in available airport capacity. The Order currently does not provide a 
process for the FAA to reduce the number of OAs should that become 
necessary. The FAA proposes to use a weighted lottery system if we 
determine that OAs need to be withdrawn or temporarily suspended.
    Under this weighted lottery proposal, all air carriers holding OAs 
at the airport would be included. The FAA will use weights when 
establishing the air carrier rank order for OA selections. For example, 
if an air carrier has a weight equal to seven, the carrier's name will 
be placed seven times in a random draw. Once we have completed this 
process for all lottery participants, a representative of the FAA will 
begin drawing names. Although there is a possibility that any air 
carrier participating in the lottery could be chosen first in the rank 
order, carriers with greater operations at LaGuardia would have higher 
odds of being selected. Using a random drawing to establish a carrier 
rank order, carriers would relinquish two OAs in each sequence until 
the FAA's reduced level of operations by half-hour or hour, as 
appropriate, has been achieved. Withdrawal would not be made from any 
carrier if the result would reduce its holdings below 20 OAs on any 
weekday. For these purposes, the FAA would consider commonly owned and 
affiliated carriers to be single air carriers. The FAA would provide at 
least 45 days' notice unless otherwise required by operational needs. 
Any OA that is withdrawn or temporarily suspended would, if 
reallocated, be reallocated to the carrier from which it was taken, 
provided that the carrier continues to operate scheduled service at 
LaGuardia.

III. Proposed Amendment to the Order

A. Scheduled Operations

    With respect to scheduled operations at LaGuardia, the FAA proposes 
the following amendments to ordering paragraphs:
    5. An air carrier can lease or trade an Operating Authorization to 
another carrier for any consideration, not to exceed the duration of 
the Order. Notice of a trade or lease under this paragraph would be 
submitted in writing to the FAA Slot Administration Office, facsimile 
(202) 267-7277 or e-mail [email protected], and must come from a 
designated representative of each carrier. The FAA must confirm and 
approve these transactions in writing prior to the effective date of 
the transaction. However, the FAA would approve transfers between 
carriers under the same marketing control up to 72-hours after the 
actual operation. This post-transfer approval would be limited to 
accommodate operational disruptions that occur on the same day of the 
scheduled operation.
    6. Each air carrier holding an Operating Authorization would 
forward in writing to the FAA Slot Administration Office a list of all 
Operating Authorizations held by the carrier along with a listing of 
the Operating Authorizations actually operated for each day of the two-
month reporting period within 14 days after the last day of the two-
month reporting period beginning January 1 and every two months 
thereafter. Any Operating Authorization not used at least 80 percent of 
the time over a two-month period would be withdrawn by the FAA except:
    The FAA would treat as used any Operating Authorization held by an 
air carrier on Thanksgiving Day, the Friday following Thanksgiving Day, 
and the period from December 24 through the first Saturday in January.
    The FAA would treat as used any Operating Authorization obtained by 
an air carrier through a lottery under paragraph 7 for the first 120 
days after allocation in the lottery.
    The Administrator of the FAA could waive the 80 percent usage 
requirement in the event of a highly unusual and unpredictable 
condition which is beyond the control of the air carrier and which 
affects carrier operations for a period of five consecutive days or 
more.
    [The following paragraph would be inserted as ordering paragraph 8, 
and existing paragraph 8 would be renumbered as ordering paragraph 9].
    8. If the FAA determines that a reduction in the number of 
allocated Operating Authorizations is required to

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meet operational needs, such as reduced airport capacity, the FAA would 
conduct a weighted lottery to withdraw Operating Authorizations to meet 
a reduced hourly or half-hourly limit for scheduled operations. 
Withdrawal would not be made from any air carrier if the result would 
reduce their holdings below 20 Operating Authorizations on any weekday. 
The FAA would provide at least 45 days' notice unless otherwise 
required by operational needs. Any Operating Authorization that is 
withdrawn or temporarily suspended would, if reallocated, be 
reallocated to the air carrier from which it was taken, provided that 
the air carrier continues to operate scheduled service at LaGuardia.

IV. Request for Comments

    The FAA invites all interested persons to submit written comments 
on the proposals described in this Order by filing their written views 
in Docket FAA-2006-25755 on or before September 6, 2007.

    Issued in Washington, DC on August 2, 2007.
Kerry B. Long,
Chief Counsel.
[FR Doc. 07-3855 Filed 8-2-07; 4:30 pm]
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